As a result of the COVID-19 crisis, employers can expect employee lawsuits based on exposure to the disease within the workplace.  Employers may find themselves subject to lawsuits that seek to hold them liable for COVID-19 related injuries or deaths.  This is especially true in the essential business sector, where employers have not been able to transition to remote work arrangements.

Most claims for work-related injuries and illnesses are handled through workers’ compensation insurance, which is covered in each state. Workers’ compensation coverage traditionally includes compensation for medical expenses and lost wages for employees who are injured or become ill in the course of performing their job duties. Even though workers’ compensation is the employee’s exclusive remedy, there are instances in which states will allow workers to sue for damages if an employer’s conduct was intentional or grossly negligent. Pereira v. St. Joseph’s Cemetery, 54 A.D.3d 835, 836 (N.Y. App. Div. 2008).

Proving a Workplace Injury

In New York, in order to be eligible for workers’ compensation, claimants must prove that the injury they suffered was a direct result of performing their job duties. In infectious disease cases, employees must definitively establish that their illness was contracted during the performance of their job duties. Employees will have difficulty proving that they contracted COVID-19 in the workplace, particularly since COVID-19 is highly contagious and has a long incubation period. Employees may not be able to demonstrate when and where they actually contracted the virus.

The New York Worker’s Compensation Board has denied claims of infectious disease exposure where the illness or disease is common in society and could have been contracted in various locations. COVID-19 unquestionably meets that standard.

Since the burden of establishing a workers’ compensation claim for COVID-19 is high, some states, including New York, are discussing legislation which will make it easier for essential workers to demonstrate that the virus was contracted in the workplace.  Currently, no such laws or executive orders have been passed or issued in New York State.

Claims in Court

Workers’ compensation limits damages to an employee’s wages, often depending on the nature of the injury. As a result, employees and their families may commence lawsuits where they could receive greater damages. But bringing such a lawsuit is not simple. In New York, an employee must establish that an employer’s conduct was intentional or deliberate by demonstrating that the employer acted with the desire to bring about the injury. Doe v. State of New York, 89 A.D.3d 787 (2011). It will be extremely difficult for employees to prove that their employers desired that they become infected with COVID-19.

Takeaway

While the current workers’ compensation laws favor employers, employers should remain cautious. New York may follow the lead of California, where an executive order was recently issued creating the presumption that workers did contract COVID-19 from their employers.  It is important that employers adhere to the most recent CDC, state and local guidelines concerning COVID-19 prevention to limit their liability. Efforts should include adequate cleaning and sterilization of workplace facilities, mandating and providing protective face wear and gloves, monitoring employee health, and modifying the workplace to guarantee adherence to social distancing.  Employers should also continue to monitor changing guidelines and standards that apply to their industries.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP